Thank You - A Suggestion

I thank all those who spread around the post requesting that people daven for Alta Chaya Sarah bas Leah Avigail and of course for those who are davening and saying tehillim and doing added mitzvos.

Maybe everybody can take upon themselves a kabbala of some mitzva - even for a short time - as a zchus for the special young lady. It could be to learn a masechta of mishnayos, a taanis dibbur for one hour where one doesn't say [or text] even one word that is not Torah or Tfillah, to give a certain amount of money to tzdaka, to stay off the Internet for an entire day - anything that will make you holier and add merits to Alta Chaya Sarah bas Leah Avigail. [Maybe skipping the Thanksgiving football game and instead "pound it" in the "Beis". Perhaps with some Kedushas Levi on the Parsha or the like].

May we hear that she recovered and one day in the not to distant future becomes a kallah and continues the chain of our people.

Bsuros tovos for all.

Bi-ahava,
Me  

Baruch Hashem

I thank those who davevned for Chaim ben Chana Reizel. The heart surgery [performed in Boston] was a tremendous success.

We should all hear besuros tovos, yeshuos vi-nechamos!!!

Bi-ahava,

Me

Thoughts On Thanks

You would think that when bringing a korban todah [thanksgiving offering] in the Beis Hamikdash it would be a Turkey - but it's not...

The 3 basic opinions about celebrating Thanksgiving:

1] Absolutely forbidden as חקות עכו"ם [Rav Hutner in his Igros and also see Rav Menashe Klein in his Mishne Halachos 10/116].

2] Absolutely permitted [Rav Soloveitchik as reported in Nefesh HaRav and your parents and grandparents].

3] Permitted but not as a yearly celebration so as not to add on a new holiday to our calender [Yom Ha-atzmaut?]. [Rav Moshe in HIS Igros].

I am an American by birth and by mentality and appreciate the strong sentimental value Thanksgiving has for Americans but as a Jew I believe that the Jewish celebration of the holiday is a symptom of our assimilation into the general society. Chasidim in Williamsburg and New Square, for example, don't celebrate Thanksgiving. This is because they are simply less influenced [although not immune] by the gentiles around us.

On the other hand since it is only a symptom, it is better to focus on the root problem and dilemma, namely, how much should we be absorbed in the lifestyles and practices of the surrounding culture? Sports, entertainment, politics etc. etc.

A good topic of conversation for your family's thanksgiving dinner table....:-).

Bi-ahava and blessings for a hearty appetite and gobble gobble,

Me   

חיים בן חנה רייזל

Today the baby Chaim ben Chana Reizel is having major heart surgery. Please daven.

Is Turkey Kosher?

Rabbi Ari Zivitovsky Phd.

INTRODUCTION:

With Columbus' serendipitous discovery of the "New World", came not only the blessing of a new land in which Jews would find a safe haven, but also unknown species of flora and fauna with which the halachic system would have to deal. Turkey, a New World bird, is a good example of this. According to the National Turkey Federation, Israel leads the world in turkey consumption. At a whopping 26.9 pounds per capita in 1996, Israelis consumed about 45% more than Americas, who are the world's number two consumers. How is it that the turkey, the quintessential New World species which Benjamin Franklin proposed as the national bird of the United States, has become so universally accepted as a kosher species that Israel leads the world in its consumption? To appreciate the question one must understand how fowl are classified as permissible or forbidden, and to recognize why a "new" species of fowl presents a significant halachic challenge.

For the purpose of identifying kosher animals, the Shulchan Aruch (Yoreh De'ah 79, 82, 83 and 85), based on Lev. 11:1-27 and Deut. 14:3-20, divides the animal kingdom into four categories. These are: terrestrial mammalian quadrupeds, birds, fish, and invertebrates. In general, the Torah specifies the features characterize a kosher species. For example, among the mammalian quadrupeds, an animal is kosher if it both chews its cud (ma'alay gara) and has fully split hooves (mafreset parsah v'shosa'at shesa prasot). In many cases the talmudic sages clarified, elaborated, embellished and added to the indicators, and these are often recorded as normative halacha in the Shulchan Aruch.

Birds are categorically different from the other three classes in that the Torah offers no identifying features to distinguish the kosher from the non-kosher species. The Torah simply provides a listing of those birds that are not kosher. An even score of species are listed and after several of them "and its species" is stated, for a total of 24 non-kosher species. By inference, all of the other, vast number of bird species, are kosher. Thus, for Moshe Rabbenu, or any expert ornithologist who is able to correctly identify the 24 listed species, things are relatively straightforward - all other birds are kosher. However, today when these can no longer be accurately identified, things are quite a bit more complicated. "In order to fully explain the identification of kosher birds would take a small booklet of its own" (Minchat Chinuch, mitzvah 157). And Chatam Sofer, Rabbi Yonatan Eibschitz, and others wrote several. What will be presented here is, by necessity, only a brief summary of the main 

ideas, with a focus on those relevant to the question of turkey. 

KASHRUT OF BIRDS - THE RABBINIC STORY:

The rabbis, cognizant that not everyone is familiar with all of the non-kosher species enumerated in the Torah, provided the following four identifying features to help categorize birds. The Mishnah states "every bird that is 1) dores ("a predator") is not kosher. Every bird that has 2) an extra toe, 3) a zefek (crop - ingluvius, the biblical more'eh, e.g. Lev 1:16), and 4) a korkuvan (gizzard, "pupik" in yiddish) that can be peeled, is kosher."

The definition of a dores (predatory species) is the subject of a major debate. Rashi (Chullin 59a) and Rav Ovadiah Mibartenura (Chullin 3:6 - first explanation) explain that it refers to a bird that seizes its food with its claws and lifts it off the ground to its mouth. Rashi (Chullin 62a, Niddah 50b) and Rambam (Perush Hamishnayot, Chullin 3:6) explain that the bird holds down its prey with its claws and breaks off small pieces to eat. The Raavad elaborates and says that a bird is a dores if it holds down its food with its feet. the food can be a live or dead animal or even vegetables.

Ran, Tosfot (Chullin 61a, s.v. hadores) in the name of Rabbeinu Tam, Sefer Haeshkol, and Rav Ovadiah Mibartenura (Chullin 3:6 - second explanation) reject Rashi's definition because it would seem to include chickens. Rather, they explain it to mean that the bird hits its prey and ingests its prey while it is still alive. The Beit Yosef, Meiri, and Rashba in the name of Rabbenu Tam explain that the eating of live worms by chickens is not a problem since worms are not true "animals". This would apply to flies as well. The Rashba limits it specifically to birds that eat other birds alive. Divrei Aharon (#29) in the name of the Rashash explains that the critical feature of dores birds is that they whack their prey before consuming them alive. This is not characteristic of chickens and other birds that eat small insects and insects.

Ramban, Rashba, Sefer Hachinuch, and Shach define dores as birds that either claw their prey to death or inject them with a venom. Raavad rejects this since many of the non-kosher birds listed in the Torah, including the orev, have no poison. Rabbenu Gershom interprets dores to mean that they seize their prey in flight, without first alighting on the ground.

Chazal provided two indicators to recognize a dores (Mishnah, Chullin 3:6). If, while standing on a rope, it spreads two toes to each side it is dores and definitely not kosher; if it splits its toes three and one it is not a dores and may be kosher. Second, if one throws food in the air and the bird catches it and eats it without the food ever touching the ground, it is a dores.

The talmudic sections (Chullin 60b-63b, 65a) dealing with the above cited Mishnah are cryptic, and their practical application is the source of a great deal of controversy. It led the Meiri to comment that "it is all confused in the hands of the commentators" and the Sefer Haeshkol to observe that in this subject matter "due to our many sins we are groping and searching in the dark and searching for God's word and not finding the truth."

According to the Talmud (Chullin 61a), the two prototypical birds from which we derive the kosher characteristics are the tur (turtle dove - Feliks) and the nesher (Griffon Vulture (Feliks) or Eagle  (Kaplan)). The tur is one of the two birds that was suitable for sacrifices in the Temple and exhibits all four kosher signs. The nesher heads the list of non-kosher birds and has none of the kosher signs. An orderly presentation of many of the possibilities of how to understand these talmudic sections is offered by the Meiri  who divides them into four principal explanations. These are summarized as follows:

The first opinion is that of Rashi. It is cited by the Ramban and Ran, accepted by the Rosh, Rashba, Chinuch (mitzvah 157), and Chachmat Adam (36:2), and according to Tosfot Yom Tov (cited in Tzemech Tzedek YD:1:60) the Rambam, and it is strongly defended by Pri Toar and Tzemech Tzedek. It states that to be kosher a bird must have all four indicia. Thus, it is necessary for a bird to be a non-dores, because even if it exhibits all three physical signs, it may still be a dores and hence non-kosher.

This condition presents a major problem since it is sometimes difficult to determine a bird's dores status. The Talmud presents the story of the bird known as tarnugulsa d'agma which was assumed to be a kosher species and was widely eaten and only later was found to be a dores and declared non-kosher. 

According to the Aruch Hashulchan (YD 82:12) the most widely accepted opinion is the second one, that of Rav Moshe ben Rav Yosef (Rambi). In this view, which is followed by Razah, Ramban, Rashban, Ran, the Ittur, Maharshal, and others, there are really only three signs. Any bird that exhibits all three physical signs is by definition not a dores and is kosher. In addition, all birds that are dores are not kosher, and all non-dores are kosher except for either the peres or the ozniyah. Since neither of these is found in settled areas they are a non-issue.  The presence of three indicators is such a strong proof that it is not dores that the Yam Shel Shlomo (cited in Shach, YD 82:8) says that if such a bird is observed being dores it is anomalous behavior and can be ignored.

In response to a statement that most Rishonim and Acharonim (early and later rabbinic authorities) follow Rashi, Shoel U'mashiv (3:YD:2:121) wrote "this is a lie. The truth is the opposite. Nearly all of the Rishonim follow Rambi." He emphasizes that the great Ramban held that if the bird has all three kosher signs and is not known to be dores it is definitely kosher. And the Rashba, Ran, and Maharshal agree with this. 

The final two opinions agree that if presented with a bird that has all three physical attributes there is no need to investigate its dores status - it is certainly kosher. The last opinion gives special consideration to the kurkavan sign, prompting the Aruch Hashulchan (YD 82:12-13) to say that if a bird has at least two of the three signs and one of them is a peelable kurkavan many people will declare it a kosher species without a need to verify its dores status. 

KASHRUT OF BIRDS - THE NEED FOR A MESORAH:

With all the confusion, what is the normative halacha? Some Rishonim, such as the Ramban (Chullin 62) who describes examining many birds to identify the kosher traits, were willing to trust their understanding of the Talmud and to rely on the physical characteristics. The Shulchan Aruch (YD 82:3) narrowed the use of physical signs and required a priori knowledge that the bird is not a dores. The Shulchan Aruch also provided some means, to be discussed below, of ascertaining that a bird is not a dores.

Rashi (Chullin 62a), based on the incident of the tarnugulsa d'agma in which people ate a non-kosher bird as a consequence of applying physical characteristics as a criterion, opines that we can never be sure that a bird is not a dores and hence rules that birds may be eaten only if there is a mesorah - a tradition attesting to the acceptability of this particular species.

The Ramo (YD 82:3), the principal authority for all Ashkenazic lands, followed the lead of Rashi and the Levush and ruled that the only applicable principle as far as he is concerned is that "no bird should be eaten unless there is a mesorah that it is a kosher species."
 

This is based on accepting two different rulings of Rashi. First, Rashi's opinion that the three physical indicia do not prove that the bird is not a dores. Second, his assertion, agreed to by the Gra (YD 82:7), that we can never be sure through any means that a bird is not dores.  Putting these two opinions of Rashi together yields the result that a mesorah is always required in order to permit a bird. Harsh languages has beens used in analyzing this opinion of the Ramo. The Kreisi U'plasi expresses wonderment at the origin of this concept, and the Minchat Yitzchak (2:85) obligingly points out the sources. The Aruch Hashulchan (YD 82:29) writes that although some have voiced surprise at the Ramo's stringency, he can show that it is firmly rooted in halacha, and that this stringency should not be violated. The Chachmat Adam (36:6) similarly states that no signs in the world would permit a bird, only a mesorah could do so.

This ruling of the Ramo,  that there is an absolute requirement for a mesorah motivates the question regarding turkey, a New World species, and will be the launching platform for what follows. If "no bird should be eaten in the absence of a mesorah" how is it possible for a New World species to be kosher.

MESORAHS: TRANSMITTING, MAKING, APPLYING, AND AMENDING:

FUNCTIONING OF A MESORAH: The reliance on a mesorah also provides a leniency. When a reliable mesorah exists there is no need to investigate the characteristics of the bird (see Yerushalmi, Chullin 3:6). Even if the bird is shown to be lacking some of the three physical characteristics, the mesorah can be relied upon and the bird eaten (Shach, YD 82:9; Pri To'ar 82:3). The only exception to this rule would be a bird that is empirically found to be a dores, in which case it is concluded that the mesorah was erroneous and must be rejected (Shach, YD 82:6).

For the above rule to apply, the mesorah needs to be "reliable." The Rosh (Shut Rabbenu Asher, Clal 20, #20) was asked whether a particular bird, the chasida,  could be eaten. He responded that in his region and in Spain there was a tradition that it was not kosher, i.e. they had a negative tradition. The Rosh emphasized that inspection of the signs is insufficient to render it kosher and even in the talmudic period errors were made. Although he conceded that others have what they term a mesorah to permit that bird, he insisted that he would not rely on such a mesorah since its origin is unknown, whereas he traces his negative mesorah to the saintly chachmei Ashkenaz - leaders of German Jewry. He explains that the talmudic dictum (Chullin 63b) that birds are eaten based on a mesorah means that an unfamiliar species may be eaten based on testimony of another locale that they have a tradition that it is kosher. However, a species that the sages know to be non-kosher cannot be eaten based on a mesorah of another, less trustworthy group. It could be that their mesorah originated when someone erroneously relied on his own interpretation of the indicia and declared it kosher.

A similar idea is mentioned in Shut Maharil, 95 (Cited in Da'at Torah, YD 82:3) who writes not to eat a particular bird even though some people have a mesorah since the higher quality mesorah of Ashkenaz says not to eat it. He further specifies that a mesorah can be introduced to a locale only by an important person, the likes of which don't exist any more today. (This extreme position of the Maharil is cited by the Pri Maggadim (YD:beginning of 82) and Chachmat Adam (36:9) as the halacha.)

Mei Be'er (#19) cites the Tzemach Tzedek (#29) who raises the important issue regarding the origin of a mesorah in another locale. It is not sufficient to know that they eat a particular species. For example, they may be a Sefardic group relying on the goose comparison (see below), a leniency rejected by Ashkenazim. This is a very logical point, for otherwise it would mean that in practice all places are accepting any and all leniencies accepted by any recognized group.

Despite its cogency, this point is not mentioned by the Aruch Hashulchan (YD 82:32) who states that if a person from a place that treats a certain bird as prohibited because of a lack of a mesorah goes to a locale that has a reliable tradition, he may eat the bird based on their tradition. That is because his home town refrained from eating it not because of a known prohibition but because of a lack of a mesorah. As an extension of this, the Aruch Hashulchan (YD 82:33) emphasizes that there is no question whatsoever that if all the inhabitants in a particular place that does not have a mesorah want to rely on the mesorah of a locale with a mesorah, they may unquestionably do so. The Gra and many others seem to also accept this position.

Can names of species be relied upon for a mesorah? In many places the Talmud seeks to translate biblical bird names into contemporary ones, possibly indicating that knowledge of the name is sufficient. However, all the commentators, seemingly without exception, held otherwise. Rashi (Chullin 59a, s.v. v'harei tzvi) explains why he held that what was called tzvi in his day was not the tzvi of the Talmud's time. Tosfot (Chullin 63a, s.v. netz) prove that the netz, nesher and korah in their time were different than the netz, nesher and korah of the talmudic period. Meiri discussed the bas haya'anah, one of the non-kosher birds listed in the Torah. In Aramaic, as rendered by Onkelos, this is a na'amiah. The gemara (Shabbat 128a) states that the na'amiah eats glass. Meiri says that he knows of a bird known as na'amiah that eats glass and yet it is clearly not a dores and even has webbed feet.

Beit Yosef (YD 82) quotes Rabenu Yerucham in emphasizing that names cannot be relied upon. What we today call an orev does not have the signs attributed to it by chazal. They said that it has no zefek, yet our orev does. Similarly, what we call a nesher has an extra toe, yet chazal stated that the nesher had none of the kosher signs. Finally, Rabenu Yerucham states that what we call the netz has only one kosher sign, an extra toe, yet chazal indicated that it had additional kosher signs. In deference to this naming conundrum the new Artscroll Stone Chumash followed the lead of Rabbi Samson Raphel Hirsch and transliterated rather than translated the bird names in Leviticus and Deuteronomy. Apparently, relying on contemporary names is problematic.
 

TRANSMITTING A MESORAH:

 In 1832 Rav Isaac ben Meir ha-Kohen, of Leghorn (Livorna), central Italy, wrote Zivchei Cohen, a book on shechita, bedika, and nikkur. He provided diagrams and Italian names of 30 birds for which he says a mesorah existed. This list is reproduced with (the presumed) Hebrew, English and scientific names in Feliks (p. 109). It includes pheasant, peacock, quail, mallard, dove, and robin, but omits chicken and turkey. Early editions of the work with color diagrams have recently been found, and the color drawings have been republished.  Zivchei Cohen possibly held that a mesorah could be transmitted in writing. Similarly, the Chida (Machzik Bracha YD:82:6) and the Kaf Hachaim (YD 82:17) say they "saw" the mesorahs of Leghorn. Furthermore, many works on the subject, such as Kaf Hachaim and Zivchei Tzedek, offer lists of names of permitted and forbidden birds. These authors presumably believed that they were fulfilling some purpose by providing these lists and must have believed that they participated in the transmission of a mesorah.

In opposition to this, Darkei T'shuva (82:34) cites sources that require a verbal and personal, rather than a written, testimony to the acceptability of a bird. This seems to have been the opinion accepted by Rav Moshe Feinstein (Igrot Moshe YD 1:34). This would be similar to other areas of halacha. For example, the Ramo (YD 64:7) writes that the details of nikkur (removing the forbidden fats - chailev) cannot be adequately explained in writing and in order to really understand them one must observe an expert.

What about reliance on a non-Jewish mesorah? In other words, if a non-Jewish text (according to those who would rely on written transmission) or a group of non-Jews attest to the fact that Jews of a certain locale consumed a particular type of bird, would that be a sufficient "mesorah" to reinstate a Jewish mesorah for that species? The Radbaz (Shut Haradbaz 6:2206) uses a non-Jewish tradition, in conjunction with other evidence, to establish one of the borders of the Land of Israel by identifying the biblical Nachal Mitzrayim with Wadi El Arish.

EXTENDING OR "CREATING" A MESORAH: 

There are several alternative methods for establishing the kashrut of an unknown bird species and these fall into two general categories. Of those listed below, the first two and the last one enable an unknown bird to be subsumed under the mesorah of a known bird. The fourth and fifth are circumventions of the requirement for an existing mesorah and enable the "creation" of a new one for the unknown species. 

Kilayim: If two birds are not kilayim with each other, then the mesorah of one applies to the other (Chatam Sofer, YD:74). Today, the determination of which birds are kilayim are based on mesorah as well, and I don't believe there exist any "non-kilayim" mesorahs that would expand the pool of kosher species.

Eggs: If one can demonstrate that the eggs of an unknown bird are indistinguishable from the eggs of a known kosher species that is sufficient grounds to encompass the new bird within the old mesorah (Avnei Nezer, YD:1:76:6-12). Unfortunately, turkey eggs are significantly different from chicken eggs. They are almost twice as large as ordinary chicken eggs (100 g compared to 55-65 g) and are pale creamy tan and speckled with brown as opposed to either plain white or brown chicken eggs.

The Gemara (Chullin 64a) and Shulchan Aruch (YD 86) provide indicators to distinguish kosher from non-kosher eggs. All eggs which have two rounded ends or two pointed ends are definitely from non-kosher species, but all eggs that have one rounded and one pointed end may be from kosher birds. If the yolk is inside and the albumen (white) is on the outside it may be kosher, but if the yolk is outside, it is non-kosher and if the two are intermingled, it is the egg of an insect.

This test would seem to only rule out non-kosher species but be ambivalent about declaring an egg kosher. Arugot Habosem claims that even Rashi would agree that three physical indicators in conjunction with the egg test is sufficient to declare a bird as kosher.

Shachen V'nidmeh: The gemara concludes (Chullin 65a) that if an unknown species of bird lives with and resembles a known non-kosher species it too is non-kosher. Similarly, if it dwells with a kosher species and resembles it, it too is kosher. T'shuvot Beit Yitzchok (1:YD:107:10) was asked whether this can be applied to a new type of bird that lives among chickens. He prohibited it since although the Yam Shel Shlomo (siman 117) had cited this Gemara, the Shulchan Aruch does not, and the Rambam (Ma'achalot Asurot, 1:20) only cites it in the direction to prohibit an unknown species. In addition, he contends that this new species was not living with chickens on its own volition. A farmer had placed them together, and thus their living together does not prove anything. There are some sources, such as Arugot Habosem, who permitted birds based on shachen v'nidmeh and simply expressed surprise at the Shulchan Aruch's omission.

Minchat Yitzchak (5:31:25) cites earlier sources who argue that it is a logical flaw to use only half of the shachen v'nidmeh principal. If an unknown bird lives with a known kosher species and we cannot thereby permit the new bird, then it is by default forbidden. Now the known species is shachen v'nidmeh with a non-kosher species and it should be prohibited! Although it may be logically inconsistent, the halachic response is that the mesorah of the accepted species is salient enough to outweigh shachen v'nidmeh and leaves it as a permitted species despite the fact that the new species is now prohibited.

The "Goose Comparison": An avenue around the need for a mesorah is provided by a statement of the Baal haMaor which is almost universally accepted (Shuts Harosh, clal 20:5 in the name of Rabbeinu Zerachia HaLevi; Rashba; Tur; Beit Yosef; Ran). He states that any bird that has a wide beak and webbed feet like the avaz (goose) is not a dores. This, in conjunction with all three physical indicia (Shut Mei Be'er # 19), can be used according to the Shulchan Aruch to permit an unknown species.

Some of the later authorities make an effort to relate this to the original four methods of understanding the Talmud. The Taz and Prisha say that Rashi would not accept the "goose comparison." It only works because the halacha in reality follows Rabbenu Tam and the mesorah that is required is only a token in deference to Rashi. The Kreisi uPlaysei in his monograh Pnei Nesher used the goose comparison to permit a bird. He argued that since the Rosh and Rashba were strict like Rashi many followed suit, but really the halacha is not like Rashi and three physical signs should be sufficient. Therefore, in conjunction with the goose comparison we can unquestionably permit an unknown species that has all three physical signs. Darkei Moshe held that since the "goose comparison" removes any doubt of the bird being a dores, even according to Rashi it should be efficacious, since there is no longer any need to be concerned that it is a dores. Divrei Aharon (#27) proves that Rashi would accept the goose comparison since Rosh, who agrees with Rashi, explicitly accepts the goose comparison.  Nonetheless, the Darkei Moshe says that one should reject it and be stringent, and that is precisely what he does in Ramo YD 82:3. 

A straight-forward analysis is provided by Tzemech Tzedek (YD:60). He explains that the goose comparison is intended to remove any doubts as to the bird being a dores. According to the Baal haMaor, who defines a dores as a bird that hunts and eats other birds, similar to a lion, a bird which passes the goose comparison is physically incapable of being a dores. However, according to Rashi's explanation that dores simply means that the bird holds its food down with its feet, even a bird that passes the goose comparison can be a dores. Hence, it is perfectly logical and clear that Rashi would reject the goose comparison.

Hybridization Test: With regard to quadrupeds, the Talmud (Bechorot 7a) states that kosher and non-kosher species cannot cross-breed. This is cited as an undisputed halachicly valid and sufficient, but not necessary, means of distinguishing between kosher and non-kosher animals (Rambam, Maachalot Assurot 1:13). The Chatam Sofer (YD:74) was unsure whether this rule applies to birds while the Netziv (Meshiv Davar YD:22) and Arugot Habosem, based on the Rambam's language, seem convinced that it does but were hesitant to apply it in practice.

The Avnei Nezer (YD:1:75), while discussing a new bird that was brought to Warsaw from a part of Russia where there were no Jews, opines that although the Chatam Sofer presented both sides, he actually held that this rule applies to birds. Similarly, The Maharsham (the Bezhana Rav, Rav Shalom Mordechai haCohen Schvadron; Da'at Torah YD82:3) felt that the Chatam Sofer accepted the hybridization test. The Avnei Nezer claims that Tosafot also held that the rule applies to birds, and he therefore concludes (YD:1:75:19) that in his opinion if an unknown bird can mate with a known kosher bird and produce live offspring then the unknown bird may be treated as kosher. He felt that this alone was enough to permit an unknown species. There is, however, a dissenting opinion. Among others, the Beit Yitzchak (YD 1:106) and Minchat Yitzchak (5:31) disagree and say that kosher and non-kosher birds can successfully mate, and hence such a hybridization does not prove anything. 

It must be emphasized that the hybridization test is circumventing the need for a mesorah, not broadening an existing mesorah. It is not labeling the new species as being of the same species as the old one, but rather of the same very broad category - permissible to eat. It is clear that different halachic species can cross-breed. That is the basic assumption behind the prohibition of kilayim (prohibited cross-breeding). The ability to hybridize therefore could not possibly be used to include the new bird under the same species as the old.

Zivug Test: Both the Netziv (Meshiv Davar YD:22) and Arugot Habosem (Kuntrus Hatshuvot, 16), who accepted the hybridization test in theory but were hesitant to use it in practice, were willing to use the zivug test in practice. That is, if the questionable bird is placed together with birds of the opposite sex of both its species and a known kosher species and of its own volition sometimes chooses the kosher species, the Netziv was willing to permit the new bird. He is claiming that even if the hybridization test is no good, and really kosher and non-kosher birds can breed, this test reveals that they are actually one and the same species. Similarly, the Nachal Eshkol (ed. Halberstadt, 1868, p.62 note 10) concludes a lengthy discussion of the hybridization test that if an unknown species regularly reproduces with a known kosher species, the three physical indicators can be relied upon, and no further tradition is required, since they are considered one species. Chesed L'Avraham agrees as well.

KASHRUT OF THE TURKEY: 

The common assumption is to associate turkey with chicken despite the fact that turkey is really more closely related to pheasants and partridge. However, chicken and turkey are in the same Order (Galliformes), and according to some authorities, in the same family (Phasianidae) as well. A good starting point to this section would therefore be a short discussion of the chicken, which is universally accepted as kosher.

Records indicate that chickens were domesticated and eaten in Israel as early as the seventh century BCE, although following the fall of the Roman Empire chickens predominantly reverted to the role of indigenous scavengers until the agriculture renaissance of the 19th century.

There is little question that a chicken is a kosher bird regardless of its breed (see Darkei T'shuva YD 82:24). Just like scientifically they are all chickens, so too halachically. This includes breeds that look quite different and are relatively new, such as the popular leghorn. Divrei Aharon (beginning of #27) proves that small differences do not create a new halachic species. Rabbi Yitzchak Isacc Liebes (author of Shuts Beit Avi; mesorah, 1990, 3:60-65) in discussing Rock Cornish Hens essentially says "if it looks like a chicken, walks like a chicken and quacks like a chicken, it is a chicken," and since Rock Cornish Hens are [just like] the common chicken, they fall under the chicken mesorah. 

Historically there have been several major fights over what was included as a chicken. In the last century a "chicken" that was slightly larger than the usual, had feathers on its legs, and made deeper sounds arrived in Europe from India, Africa or some island in the Middle East. It had a laundry list of different names by which it was called, with the most common being something like "kibbitzer hen."

In some responsa it is called the "Americanisha hen" and Rav Yaakov Etlinger claims that they came to Europe from India but originated in America. This might lead some people to erroneously assume that, for example, Divrei Chaim YD 2:45-48 and Maharam Shick YD 98-100, were discussing turkey. They are almost definitely NOT discussing the turkey. Many of the responsa discuss the offspring of this kibbitzer hen and regular chickens and assert that in some locales the hybrid was now the majority of chickens. This could not possibly happen with turkeys and chickens. Many responsa, and even whole monographs, sometimes with extremely strong language and personal attacks, were written about this bird. 

There are two types of wild turkey, both of which are strong fliers (up to 55 mph for short distances) and among the fastest runners (15-30 mph). One type is originally from Yucatan and Guatemala (Agriocharis ocellata; family - Phasianidae) and the other is from Mexico and the US (Meleagris gallopavo; family -Phasianidae). Currently there are seven main varieties (subspecies) of domesticated turkey, all of which are flightless and descend from the Mexican and US wild turkey. Only the kosher status of Meleagris gallopavo will be discussed; Agriocharis ocellata has never been domesticated and its kosher status is undetermined.

The terminus ante quem for the discovery of domesticated turkeys by Europeans is the Cortez expedition of 1519. The Spanish Conquistadors brought turkeys back to Europe where they were savored as a delicacy at state dinners. They were eventually acquired by other European countries, probably reaching England in 1524, and being raised domestically in Italy, France, and England by 1530. When the Pilgrims came to settle the New World in 1620 they brought turkey back to its native land, indicative of its wide-spread general acceptance in Europe.

As the turkey's acceptance spread through Europe, somehow, Jews also started eating it, and eventually the question of its kosher status was posed to various rabbis, who usually permitted it. 

A major problem in analyzing the responsa is the confusion surrounding the turkey's name, which relates to the confusion of where Columbus had landed and where this new bird came from. About 1530 when this new dish started appearing on English tables, it had been brought to England by merchants trading in the eastern Mediterranean. These merchants were called "Turkey merchants" because the whole area was then part of the Turkish empire and the bird was called "Turkey bird" or "Turkey cock". It became so popular so rapidly that only sixty years later Shakespeare (Twelfth Night, Act 4, Scene 5) was able to refer to it and assume his audience knew what it was.

The English are among the few who related this bird to Turkey. Nearly everyone else thought it came from India, whereas in reality it came from Mexico, which was then known as The Spanish Indies or the New Indies. Thus, in most European languages, Arabic, and Hebrew it is called something like the "bird of India". Even in Turkey they call it hindi, as though it came from hindistan, which is Turkish for India. The modern Hebrew (tarnagol hodu) and Yiddish (hendika hen) names both mean "Indian chicken".

Many Rabbis believed that turkey came from India, and as will be seen, included this as part of their discussion of its kosher status. The confusion of the name has led to there being responsa that talk about perlahener, indika hen, anglisher hen, or even tavas. Many of these deal with the turkey, but some discuss pheasant, guinea fowl or peacock.

The wild turkey has a crop, its gizzard is peelable, it has an "extra" toe, and its eggs have the indicators of kosher eggs, all signs indicating the turkey may be kosher.

It is possible that not everyone permitted the turkey. No less an authority than Rabbi Shlomo Kluger (1785-1869; Ha'elef Lecha Shlomo 1:YD:111) was asked about birds that come from America. He responded that we only eat birds with a mesorah, there were no Jews in America before 100 or so years ago, ergo there cannot be a mesorah and all American birds are prohibited. He concludes with the warning that whoever fails to heed him will in the future have to answer for his actions. Based on specifics in the responsa, it is most likely that Rabbi Shlomo Kluger was addressing the issue of the kibbitzer hen that some people thought came to Europe from America via India, and that he did not have turkey in mind. Nonetheless, it is difficult to see why his logic should be any different for turkey than for the generic American bird that he discusses.

A diametrically opposite attitude towards American birds that would explain why turkey is permitted has also been suggested. Chazal were able to identify all 24 of the non-kosher birds found in the biblical list. Since they did not know about turkey, it could not have been in the list. But this is clearly a fallacious argument because there are New World birds that are obviously non-kosher. Examples include the following raptors: Bald eagle (Haliaeetus leucocephalus; family - accipitridae),  peregrine falcon (Falco peregrinus; family - falconidae), and osprey (Pandion haliaetus; family - pandionidae). Even though the osprey is a New World bird Rabbi Aryeh Kaplan suggests that one of those listed in the Torah, the azniyah, might be the osprey. Thus, the Torah's list may actually include New World birds. Even if it does not, presumably what is meant by the fact that Chazal could identify the non-kosher birds is that if they were to be shown any bird, even a New World bird, they would be able to determine whether it belonged to one of the 24 categories of prohibited birds.

The Netziv (Meshiv Davar YD:22) posits that when the indik (turkey?) was brought from India there were questions about its status, and for some people those questions still remain. However, the vast majority of the Jews have accepted it as kosher. Once that has happened, unless there is overwhelmingly compelling evidence to declare it nonkosher, such as that it is found to be truly dores, it cannot now be declared nonkosher. The rule that birds are eaten only if a mesorah exists coupled with the fact that the origins of a particular mesorah are unknown, is insufficient reason to declare an accepted bird unacceptable. Rather, we treat it as if we now have a mesorah  and follow the rule that when a reliable mesorah exists there is no need for further investigation and the bird may be eaten (Shach, YD 82:9) unless it is found to be truly a dores, in which case it would be assumed that the mesorah was in error and must be rejected (Shach, YD 82:6). That has not happened with turkeys. This attitude is interesting in light of the strong insistence of the Rosh (Shut Rabbenu Asher, Clal 20, #20 - cited above) on knowing the origins of a mesorah.

Shut Mei Be'er (Rabbi Yitzchak Isaac Schur, Bucharest, d. 1897; siman 19) opines that we eat turkey (indik) relying on the Jews of India, the place of origin of the turkey, who had a clear tradition dating back to Moses that the turkey was kosher. As far as he was concerned, the only question that ever existed with regard to turkey was whether Europeans could rely on the Indian mesorah and this, he claims, was settled in the affirmative by the Rivash.

The Kaf Hachaim (YD 82:21) also permitted the turkey (tarnagol inglishi henner) based on the fact that it was eaten in India. Zivchei Zedek (82:17) in an apparent reference to turkey notes that in Iraq it was permitted and it originated in India, but he does not link the two statements. Nachal Eshkol (On Sefer ha'Eshkol, hilchot behama chaya v'of, 22:10) believed that 300 years before his time turkey came from India to England and then Germany and was now consumed without any hesitation. He permitted it based on the fact that in Russia and England it was eaten. He seems unconcerned about the origin of the tradition.

The Arugot Habosem (Rabbi Aryeh Lebush Bolchiver, author of Shem Aryeh, Russia, published 1870; kuntras ha'tshuvot in the back, siman 16) very neatly presents the quandary: Birds require a tradition to be kosher and turkey (indik) is a bird that comes from America, a place that was not discovered until the year 5254 (1494) and so no tradition is possible. Yet, he notes, all Jews, except for one well-known family in Russia, the Frankels, eat it. He therefore reaches the very important conclusion that when the Ramo requires a tradition, it is only when there is uncertainty about the bird's dores status. He posits that if a bird is no longer "new" but has been observed for a long period of time, i.e. 12 months, and observed to be non-dores it is possible to say with certainty that it is not a dores. Furthermore, he rejects the Avnei Nezer's (YD 1:76:13-14) contention that domestication and living among "friends" may be the reason for the non-dores behavior. Arugot Habosem therefore posits that even according to Rashi and the Ramo, a bird, like the turkey, that is raised in thousands of houses for hundreds of years and is clearly not a dores does not require a mesorah if it also has the three other indicia of a kosher bird; which the turkey does. 

The Shoel u'Meshiv (Rabbi Joseph Shaul ha-Levi Nathanson of Lemberg; 1810-1875) in a strongly worded responsa (5 pt.1 no 69) used the acceptability of the turkey to prove that a mesorah was not always necessary. He was convinced that Rashi was wrong in his approach to this topic and that Rambi was correct. He wrote that had Rashi seen the questions, he too would have changed his opinion, and concludes that any bird with the 3 physical signs is certainly kosher. He proves that such is the prevailing interpretation as far as practical halacha by noting that we all eat turkey (indik). There was clearly no mesorah on it since it comes from America, and yet all Jews eat it. It must be that the Ashkenazic community did not fully accept the Ramo in this regard but reinterpreted him to hold that a mesorah is not necessary if the bird has all three physical signs. Interestingly, an American at around the same time made a similar argument. Writing in Occident (Vol. 10:10:491, Jan. 1853) Rev. J. Rosenfeld noted that "the turkey, being an American bird, ... was considered 

kosher without a mesorah, as the Indians could not have given any."

The Lubliner Rav, Rabbi Eliyahu ben Rav Naftali Hertz Klatzkin (1852-1932) in Dvar Halacha (1921; siman 53, page 74) disagrees with the Shoel u'Meshiv and holds that the Ramo should be taken at face value and that a mesorah is always required.  He permitted the turkey because he understood that the Ramo required a mesorah only for a new category of birds and that turkey falls within the same general category as chickens!  He does not offer a definition of "category", and because chickens are quite different from turkeys, this line of reasoning opens a Pandora's box of potential problems and abuses.

A possible explanation as to how the turkey came to be accepted despite the Ramo's position is that it came via Sephardic lands. The Spanish and Turks were the first to bring it to Europe, and Sephardim, who were not constrained by the Ramo, accepted it as kosher. When turkey then made its way to eastern Europe the knowledge that there was a mesorah traveled with it. The origin of this mesorah was jumbled, and hence the references to mesorahs from India and the like.

Two additional possibilities are offered in the Otzer Yisrael.  He discussed the controversy that existed in his time surrounding turkey, a bird that was brought from America to Europe, possibly having been brought first from India to America. He expresses bewilderment how the authorities at that time permitted it. He offers two rationales. One is that at that time the decisors did not hold like the Ramo and hence relied on the physical signs. Alternatively, he calculates that the Ramo was born in 1540, 46 years after the discovery of America. Hence, it could be that the turkey issue was decided before the Ramo established his position, and at that time there were those who followed Rambi, although today we must follow the Ramo. 

A method to prove that turkey is kosher is the hybridization test. Turkey-chicken hybrids do not seem to occur naturally. However, viable hybrids have been successfully produced and are used in scientific research.  Furthermore, intergeneric crosses between ring-neck pheasants and chickens and between ring-neck pheasants and turkeys are well documented (Crawford, pp. 376-377) and may provide yet another avenue to permit turkeys. If hybridization between species is a legitimate test of kosher status, and many authorities accepted that it is, these crosses verify the acceptability of pheasant, and then confirm the status of turkey.

To the best of my knowledge, all of the major kashrut organizations (O-U, Star-K, Vineland (CRC-Hisachdus Horabonim-Satmar), Margareten, Breuer's, and all Israeli Rabbinates and Badatzs) treat the turkey as a kosher bird, and it is consumed by all segments of the Jewish world. 

Most of the responsa cited seem to have been post-facto and were not intened to rule on the turkey's status. Rather, their purpose was to either unravel the apparent inconsistency of accepting the Ramo and of eating turkey or to use the universal acceptance of turkey as part of an answer to another question.

Many rabbinic authorities have attested to the acceptability of the turkey derech agav - in a passing manner.

The Mishnah B'rurah (79:26) (citing the Magen Avraham and Ateres Zkanim who in turn are quoting the Bach) on the Shulchan Aruch's statement that the excrement of a "red chicken" is more foul than the excrement of most animals, identifies the "red chicken" as an "inglish hen" or "indik" - a turkey - and implies that it is kosher. The fact that the "red chicken" law is a quote from the Palestinian Talmud, a work codified in Palestine circa 350 C.E, when turkeys were unknown in Palestine, is irrelevant. The fact remains that the Chafetz Chaim (the author of the Mishna B'rurah) appears to be accepting the turkey as a kosher species.

Rabbi Herzog (1888-1959; YD;1:25) was asked about a particular bird and responded that there were reports that it was really the offspring of two kosher species, one of them being the turkey. So he too, without any discussion, accepts the turkey as kosher.

Contemporary authorities have likewise indicated its acceptability. In a discussion on the propriety of celebrating Thanksgiving, Rabbi Michael J. Broyde (Journal of Halacha and Contemporary Society, Fall 1995, 30:42-65) quotes numerous halachic authorities who parenthetically permit the eating of turkey. For example, Rav Moshe Feinstein is quoted as saying "halacha sees no prohibition ... with eating turkey" (ibid, p. 51). Rabbi Joseph B. Soloveitchik's opinion is quoted by Rabbi Hershel Schachter in Nefesh HaRav (p.231): "in his [Rabbi Soloveitchik's] opinion there was no question that turkey did not lack a tradition of kashrut." In the course of offering their opinions about the observance of Thanksgiving, Rabbi David Cohen (of Gvul Yavetz), Rabbi Eliezar Silver, and Rabbi Ephraim Greenblatt note that the turkey is a kosher bird.

Conclusion: The near universal acceptance of turkey as a kosher species, given the halachic quandary it presents, would indicate that the Jewish people have either accepted the possibility of originating mesorahs where none existed before or of accepting birds without the need for a mesorah. It is very possible that had the turkey question been posed when it was first introduced in the early 16th century, Jewish gastronomic history might have been different. It seems that many authorities may have initially come out against turkey because of its obvious lack of a mesorah. For some reason "bird controversies" erupted in the 18th and 19th centuries and when the turkey question was posed it often took the form of "why is it eaten?" rather than "may it be eaten?".

As has been shown, despite the fundamental difficulty with permitting turkey virtually all of the responsa are permissive, and it is unlikely that that will (or should) change in the future. It seems that unless one has a specific family custom to refrain from turkey, to adopt such a behavior is morally wrong. The turkey is no longer new and its kosher status has been addressed by both the great and not-so-great Jewish minds over the during 250 years and has received near-universal endorsement. To call it into question now is to impugn the dozens of responsa, and more so, the millions of honorable Jews, who have eaten turkey for almost half a millennium. That is not the Jewish way. 

From kashrut.com

PLEASE DAVEN!

Sarala Ginsberg (the 17 year old daughter of Rav Aryeh Zev Ginsberg, Rav of the Chofetz Chaim Torah Center in Woodmere) 

has been very sick for the last few weeks.  

The situation has become very critical.  

Despite what doctors may say, there is nothing 

that stands in the way of sincere tefillos.

 Please please daven for 

Alta Sarah Chaya bas Leah Avigayil 

      for a complete refuah B'toch Sha'ar Cholei Yisrael

Nine And A Child

Question #1: Nine and a Chumash?

“A friend of mine once moved to a community where the local daily minyan was not that reliable. On a regular basis, services were conducted by having a ten-year old hold a chumash as the tenth man. Is there a basis for this practice?”

Question #2: Studying Chumash

“When the rishonim referred to a chumash, what did they mean? After all, they lived before the invention of the printing press.”

Answer:

When Avraham prayed for the people of Sodom and its four sister cities, he asked Hashem to save them if forty-five righteous people lived among them, which Rashi (18:28) explains would be the equivalent of a minyan of righteous people per city: nine plus Hashem counting as the Tenth. Can one consider that there is a minyan present with a quorum of less than ten?

The basis of this topic is the Gemara (Brachos 47b-48a), which discusses whether one may conduct services requiring a minyan or amezuman when one appears to be short of the requisite quorum. Rabbi Yehoshua ben Levi ruled that if one has nine adults and a baby, one can bensch as if one has a minyan. Rav Huna stated that if one has nine adults present one can count the aron hakodesh to form a minyan. To this, Rav Nachman retorted, “Is the aron a person?” Rav Huna explained that he meant that there are situations in which a group of nine people can act as if they are a minyan. Rav Ami ruled that two great talmidei chachamim who sharpen one another in their halachic discussions can be considered the equivalent of three for azimun. Rabbi Yochanan stated that a child who is almost bar mitzvah can be included as the third for a zimun. Some rishonim (Rabbeinu Yonah) quote a text that concludes that, on Shabbos, one can make a mezuman with two adults – with the day of Shabbos counting as the third “person.”

However, the Gemara concludes that we do not permit a mezuman with less than three adults or a minyan with less than ten — the only exception being that we can count a child for a zimun, if he is old enough to know to Whom we are reciting a brocha. Nevertheless, Rabbeinu Tam rules that one may rely on the above-quoted opinion of Rabbi Yehoshua ben Levi that nine adults and a baby qualify as a minyan even for prayer (Tosafos, Brachos 48a). The Rivash feels that one should not follow the lenient approach, but rules that those who do rely on it can do so only when the child is at least nine years old (Shu’t Harivash #451). Others understand that a minor can be counted as the tenth man, but only if he is twelve years old, which halachah recognizes as an age of majority regarding oaths and vows (Rabbeinu Yonah). We should note that none of these authorities permit counting more than one child to complete a minyan.

Nine and a chumash

Tosafos (Brachos 48a s.v. Veleis) reports that some people counted a child holding a chumash as the tenth “man.” He then notes that Rabbeinu Tam criticized this approach, explaining that if we follow Rabbi Yehoshua ben Levi’s opinion, a child qualifies as the tenth man even if he is not holding a chumash, and if we do not follow that opinion, counting a child holding a chumash is without halachic basis. Rabbeinu Tam explained further that even should one locate a statement of Chazal that a child holding a chumash completes a minyan, the ruling would mean a chumash as was commonly used in the days of Chazal, which comprised one of the five chumashim (Bereishis, Shemos, Vayikra, Bamidbar, or Devorim) of the Torah written as a scroll, similar in style and appearance to a small sefer Torah or a navi scroll used for reading the haftarah. However, in the time of Rabbeinu Tam, although chumashim were still handwritten, they were no longer written as scrolls, but were bound into books. Thus, there would be no basis to permit counting a child holding the type of chumash used in his era.

What is the source?

What is the source for this custom of counting a child with a chumash for a minyan? Rabbeinu Tam was unaware of any such source in the halachic literature that he knew. However, since the practice was widespread, the possibility existed that there was a halachic source somewhere. Bear in mind that in the days of the rishonim, all halachicmaterial was handwritten, almost always on parchment, and that it was therefore very expensive and difficult to have access to seforim. (Rabbeinu Tam lived approximately 300 years before the invention of the printing press.) Rabbeinu Tam had such profound respect for this custom of Klal Yisroel that he assumed that there probably was a statement of Chazal somewhere, one that he had never seen, with a source for the custom. This is what the Gemara refers to as hanach lahem leyisroel, im ein nevi’im hein, bnei nevi’im hein (see Pesachim66a), “allow Jews [to continue their practice], if they are no longer prophets, they are descended from prophets,” and their customs are based on solid foundations.

However, Rabbeinu Tam understood that should such a statement of Chazal exist permitting a child holding a chumash to be counted as the tenth, it would include only a chumash written as a scroll and would not apply to what existed in his day.

Later authorities note that having a child hold a sefer Torah would count as the tenth man, according to this custom. Furthermore, Rav Moshe Feinstein (Shu’t Igros Moshe, Orach Chayim 2:18) notes that the requirement of having the child hold a sefer Torah scroll would not require that it be a kosher sefer Torah. Even a sefer Torah that is invalid because some words are no longer legible would qualify as a holy scroll for the purpose of counting towards a minyan.

Do we permit a child+Torah?

Most rishonim rule that one cannot count a child as the tenth man even when he is holding a chumash or a Torah. For example, the Rambam (Hilchos Tefillah 8:4) rules that a minyan for prayer must be a minimum of ten men, although for bensching he allows that the tenth “man” be a child who is seven years old or more (Hilchos Brachos 5:7). This is based on his understanding of the conclusion of the Gemara (Brachos 48a) we quoted above that allows counting a child for a mezuman or minyan for bensching, and this forms the basis of Sefardic practice. However, regarding prayer the Rambam does not allow counting a child who is holding a chumash or a sefer Torah. Praying with a minyan requires ten adult men, no exceptions.

Nevertheless, the Tur mentions that “some permit the inclusion of one child with nine adults if they place a chumash in his hand.” The Tur then notes that his father, the Rosh, wrote that one should never count a child as part of a minyan or a mezuman. This Rosh is the main approach followed by Ashkenazim.

Kerias Hatorah

Some early authorities conclude that a minor cannot be counted as the tenth “man” of a minyan for bensching or for prayer, but can be counted to allow the reading of the Torah (Tashbeitz Katan #201). The reason for this distinction is that a minor can sometimes be given an aliyah to the Torah (see Shulchan Aruch, Orach Chayim 282:3 and commentaries). Some authorities permit giving a child even one of the seven aliyos, and all authorities permit giving a child maftir and having him read the haftarah. Thus, for this mitzvah he is indeed considered a man.

The Magen Avraham (55:4; 690:24) cites this position of the Tashbeitz, but does not accept it, demonstrating that both the Shulchan Aruch(Orach Chayim 143:1) and the Rema (Orach Chayim 690:18) do not accept the line of reasoning proposed by the Tashbeitz (see also Pri Megadim, Eishel Avraham 55:4).

Shulchan Aruch and Rema

In regard to prayer, the Shulchan Aruch (Orach Chayim 55:4) concludes: “Some permit the recital of devarim she’be’kedusha [meaning kaddish, borchu, kedusha, reading of the Torah, etc.] when there are nine adults and one minor who is older than six years and understands to Whom we pray. However, this opinion is not accepted by the greatest of the authorities.” With these words, the Shulchan Aruch provides honorable mention to Rabbeinu Tam’s opinion that a child can count, on his own, as the tenth man, but he follows the majority of rishonim who reject it. The Rema comments that although one should not count a child as part of the minyan even if he is holding a chumash, there are those who permit it under extenuating circumstances.

Difference between bensching and davening

Some authorities note a curious reversal in the positions of the Shulchan Aruch and the Rema. The Shulchan Aruch rejects counting a child as the tenth man for tefillah (Orach Chayim 55:4), but accepts counting him as the tenth or third man for bensching purposes (Orach Chayim 199:10). This, of course, reflects the position of the Rambamand most Sefardic Rishonim.

On the other hand, although the Rema mentions the practice of counting a child as the tenth man under extenuating circumstances, he absolutely rejects counting him as the third or tenth for bensching (Orach Chayim 199:10). Thus, he accepts the Rosh’s ruling not to count a child as the third or tenth man for bensching, and cites a leniency only with regard to davening. This is strange, since the halachic sources imply that there is more basis to be lenient regarding bensching than there is regarding davening.

The Maharsham explains that the Rema rules that a minor can count as part of the minyan only if he holds a scroll, which to us would mean that he must hold a sefer Torah. In shul, one may take a sefer Torah out of the aron hakodesh and place it in a child’s arms in order to have a minyan. However, one would not be permitted to bring a sefer Torah to the dining room, and for this reason the Rema rules that one can never include a child in the count of a minyan or mezuman for bensching.

Later authorities

The Magen Avraham (55:5), whose opinion is highly respected by the later authorities, concludes that one may include one minor holding a chumash, but not more than one, to enable the recital of borchu, kedusha or a kaddish that is a required part of davening. However, when relying on a child to complete the minyan, one should not recite any of the kaddeishim at the end of davening (other than the full kaddish recited by the chazzan), since they are not obligatory. This means that when having a minyan of nine plus a child holding a sefer Torah, one may not recite kaddish after Aleinu, or after the shir shel yom.

After quoting this statement of the Magen Avraham, the Mishnah Berurah writes that many later authorities rule that one should not count a child as part of a minyan even under the limited circumstances established by the Magen Avraham. However, the Graz (Rav Shulchan Aruch 55:5) rules that one should not correct someone who completes a minyan under extenuating circumstances by counting a child at least six years old who understands to Whom we are davening, even if the child is not holding a chumash.

We should note that, although the Magen Avraham ruled that even those who are lenient permit the inclusion of only one child, a much earlier authority (Shu’t Min Hashamayim #53) ruled that one may include even two children, provided they are old enough to daven. He explains that since the mitzvah of davening with a community is rabbinic in origin, a child old enough to daven can be included in the count since he is also required to daven as part of his training in the performance of mitzvos (Mishnah, Brachos 20). (The obvious question is that this reasoning should permit counting more than two children, yet Shu’t Min Hashamayim permits only two, but we will leave this question for the moment.)

The shul in which I don’t daven!

In this context, it is highly educational to study two relatively recent cases recorded in the responsa literature. In the late nineteenth century, the Bruzhaner Rav, known also as the Maharsham, Rav Shalom Mordechai Hakohen Shvadron (the grandfather of Rav Shalom Shvadron, the famed maggid of Yerushalayim), was asked the following (Shu’t Maharsham 3:162): The only minyan in a small community in Hungary has been meeting for the past 25 years on Shabbos and Yom Tov in the house of a local wealthy individual. Recently, this individual has been insisting that they incorporate certain innovations in the davening, including changing the nusach of the “shul,” and requiring that the audience recite the entire davening extremely quietly and that not even amen should be answered aloud. The individual who owns the house where the minyan has been davening has now agreed to allow some members of the community to form their own separate minyan whereby they will be able to davenas they are accustomed. However, the group desiring to form their own shul has only nine adult men. Their question: May they lechatchilah begin their own shul, knowing that, according to most authorities, they will not have a minyan?

After listing many of the authorities who rule that they are forbidden to conduct services because they do not have a proper minyan, the Maharsham concludes that he is highly wary of the baal habayis of the original shul and therefore feels that they should rely on the lenient opinions and form their own minyan. He further concludes that they could rely on the opinion that, if necessary, upon occasion, they could have two children holding sifrei Torah to complete the minyan, thus ruling according to the above-quoted Tashbeitz and against the Magen Avraham. The Maharsham is the only late authority, of whom I am aware, who permits eight men plus two children to be considered a minyan.

Another responsum

Rav Moshe Feinstein was asked a similar question in which an established shul’s membership had dwindled to the point where there were only nine adults at its daily minyan. If the shul cannot count a child for the daily minyan, it will be forced to disband. Rav Moshe discusses whether they may continue their minyan notwithstanding the fact that there is another shul in the neighborhood, although it is a bit distant. Rav Moshe notes that although a majority of poskim contend that one should not allow the recital of kaddish, kedusha, etc. when there are less than ten adult men present, maintaining the existence of this shul is considered extenuating circumstance. Since the prohibition of reciting a davar she’be’kedusha without a minyan is only rabbinic, this extenuating circumstance would allow one to follow the minority opinion against the majority. He concludes that since the members of this shul may not make the trek to the other shul, and will also stop attending the shiurim provided in their current shul, the minyan should be continued.

Rav Moshe then raises a few practical questions. The Magen Avraham, upon whom Rav Moshe is relying, permits counting a child for the tenth man only if he is holding a sefer Torah. However, this creates two interesting halachic questions.

1. One is not permitted to hold something while reciting shma and the shemoneh esrei, so how can the child be holding the sefer Torah then?
2. While the sefer Torah is being held by someone who is standing, everyone is required to be standing, which means that the entire membership of this shul will be required to stand for the entire davening. (It appears that Rav Moshe understands that one may count the child for a minyan only when he is standing. I am unaware of the source for this ruling.) Therefore, Rav Moshe suggests that the sefer Torah be placed on a table, and that the child stand next to the sefer Torah with his hands holding the atzei chayim, the “handles” of thesefer Torah, which Rav Moshe considers equivalent to holding thesefer Torah.

Rav Moshe writes that it is preferable to have a 12-year-old child hold the sefer Torah, citing the authorities we quoted above who permit a 12-year old to be the tenth man of a minyan.

Rav Moshe recommends that the shul relying on these heterim not have a repetition of shemoneh esrei (chazaras hashatz). This is because reciting chazaras hashatz without a minyan present involves a brocha levatalah, a brocha in vain, which, according to some authorities is prohibited min hatorah. Rav Moshe rules that thechazzan should not recite the quiet the shemoneh esrei, but, instead, should wait until everyone has finished their shemoneh esrei and then he should recite his own shemoneh esrei aloud.

Conclusion

At this point, let us return to our opening question: “A friend of mine once moved to a community where the local daily minyan was not that reliable. On a regular basis, services were conducted by having a ten-year old hold a chumash as the tenth man. Is there a basis for this practice?”

If we follow Rav Moshe’s psak and consider it applicable to their situation, then a child should hold the atzei chayim of a sefer Torah that is placed on the table. Only the kaddeishim required according tohalachah should be recited, and no mourner’s kaddish or kaddish derabbanan. The chazzan should preferably not recite his own quiet shemoneh esrei.

The Gemara teaches that Ein Hakadosh Baruch Hu mo’eis bitefillasan shel rabim, Hashem never despises the prayers of the community. Certainly, this should inspire all of us to daven with the tzibur whenever we can.